CHALLENGING WHITENESS:

The Role for Law Societies and Critical Race Theory in Addressing Unrepresentative

Juries in Canada

Julianne Stevenson

Prof Wildeman

General Jurisprudence

April 2018

TABLE OF CONTENTS

Introduction ......................................................................................................................................1

1. The Role of Law Societies ...................................................................................................3

1.1 Protection of Public Interest.....................................................................................4

1.2 Jury Challenges as a Competency Issue ..................................................................9

1.3 Meaningful Fulfilment of Regulatory Goals .........................................................13

2. A Role for Critical Race Theory ........................................................................................16

2.1 What is Critical Race Theory? ...............................................................................16

2.2 Critical Race Theory and Jury Selection: Deconstruction .....................................17

2.3 Critical Race Theory and Jury Selection: Reconstruction .....................................19

2.3.1 Sentencing and R v Gladue ........................................................................21

2.3.2 The Reasonable Person: RDS .....................................................................23

2.3.3 Challenges for Cause: Parks and Williams ................................................24

3. Application: Critical Race Theory in the Jury Selection Process ......................................28

3.1 Preemptory Challenges ..........................................................................................29

3.2 Challenges for Cause .............................................................................................33

Conclusion ..................................................................................................................................... 38

Bibliography .................................................................................................................................. 39

1

INTRODUCTION

The lack of Indigenous representation on juries is a decades-old problem in Canada.1 Jury

representation has been considered at length by commentators,2 through government reports,3 and

by the Supreme Court of Canada (SCC).4 However, the recent acquittal of Gerald Stanley (a white

Saskatchewan farmer) in the case concerning the shooting death of Colten Boushie (a 22-year-old

Cree man from the Red Pheasant First Nation) by an all-white jury has brought the problem

squarely into the public consciousness—and has deeply shaken the public’s faith in the jury

process, the Crown, and the administration of justice as a whole.

This crisis of unrepresentative juries in Canada “demonstrates the difficulties that can come

with challenging a process left to the discretion of the lawyers involved in a case.”5 While there

are significant systemic problems with the jury array process,6 individual lawyers play an

important role in determining the ultimate make-up of petit juries through peremptory challenges

and challenges for cause. Absent explicit guidance and cultural competency training, peremptory

challenges may be subject to abuse by both the defence and the Crown, and challenges for cause

may not be used to their full potential—or may not be used at all.

1 Kent Roach, “Colten Boushie’s family should be upset: Our jury selection procedure is not fair”, The Globe and

Mail (31 January 2018) [Roach, “Our jury selection procedure is not fair”]; Rosemary Cairns Way, “An Opportunity

for Equality: Kokopenace and Nur at the Supreme Court of Canada” (2014) 61 Crim LQ 465. 2 Cynthia Petersen, “Institutionalized Racism: the Need for Reform of the Criminal Jury Selection Process” (1993)

38 McGill LJ 147; Way, supra note 1; Misha Boutilier, “Optional By-Products or Constitutionally-Protected

Purposes? Societal Interests in Representativeness, the s.11(f) Right to Trial by Jury, and the Kokopenace Decision”

(2018) 65 Crim LQ 458. 3 Ontario, First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by the

Honourable Frank Iacobucci (Toronto: Ministry of the Attorney General, 2013) [“Iacobucci Report”]; Manitoba,

The Aboriginal Justice Implementation Commission, Report of the Aboriginal Justice Inquiry of Manitoba (1991)

vol 1 [“The Manitoba Aboriginal Justice Inquiry”]; Nova Scotia, Royal Commission on the Donald Marshall, Jr,

Prosecution: Digest of Findings and Recommendations (Nova Scotia: 1989) [“The Royal Commission on the

Donald Marshall, Jr Prosecution”]. 4 R v Kokopenace, 2015 SCC 28, [2018] 2 SCR 398. 5 Sunny Dhillon, “Court case highlights concerns about Indigenous representation on juries”, The Globe and Mail

(27 February 2018). 6 Iacobucci Report, supra note 3 at Part IV 1(b).

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Therefore, this paper argues that law societies such as the Nova Scotia Barristers’ Society

(NSBS) should adopt an explicit critical race litigation strategy with respect to representation in

jury selection processes. Law societies should provide education and clear guidance to lawyers in

jury trials where either the accused or victim is Indigenous on how to challenge potential jurors

for cause, as a means of reducing or eliminating racial bias in juries. In addition, law societies

should adopt explicit guidance emphasizing the duty of the Crown to exercise its own challenges

with an awareness of the history of systemic racism in NS, the lasting impacts of colonialism, and

of its duty to ensure trial fairness—rather than to seek conviction.

This paper is in three main parts. First, it examines the role of law societies in Canada and

argues that law societies must take immediate action to ameliorate racial representation on juries

in order to uphold the public’s faith in the administration of justice, and to facilitate access to

justice for racial minorities. Second, this paper analyzes the potential of Critical Race Theory

(CRT) as a mechanism through which courtrooms may be made more racially representative, and

racial biases may be directly confronted. A review of relevant critical race litigation jurisprudence

demonstrates the potential that a CRT approach, adopted and endorsed by law societies, may effect

systemic change in the way juries are selected. Finally, this paper examines the potential

application of critical race litigation strategy in jury selection processes, through peremptory

challenges and challenges for cause.

A Note on Critical Race Theory

This paper advocates for the adoption of an explicit Critical Race Theory (CRT) approach by

lawyers and law societies, as a means of deconstructing and reconstructing the legal frameworks

that allow for the exclusion of Indigenous peoples from Canadian juries. CRT has given rise to

several subgroups, including a Latino-critical movement, critical race feminism, and Critical

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Aboriginal Theory.7 This paper employs the broader umbrella theory of CRT as a lens through

which the problem of jury representation can be assessed and addressed on the basis that “[CRT]

and its methods provide a medium to express divergent experiences, to search for and bring out

the meaning of ‘race’ and racism in the law and to provide a critical understanding of law.”8

In doing so, this paper analyzes some jurisprudence and commentary that considers jury

representation and racial biases primarily with respect to black Canadians, as many of the concepts

and analyses in those sources are informative and overlapping in the Indigenous context. However,

it is important to note that the history of colonialism and the fiduciary relationship between the

Crown and Indigenous peoples in Canada means that the problem of Indigenous

unrepresentativeness on juries requires uniquely urgent redress. This paper, therefore, calls upon

both the Crown and law societies to recognize the power they hold to reframe legal structures to

address the lasting impacts of colonialism in the courtroom, and to engage in the CRT methodology

of breaking down those frameworks and reconstructing jury selection in a manner that ensures

colonial structures are not perpetuated through the continued exclusion of Indigenous peoples from

juries—a fundamental fixture of the Canadian justice system.

1. THE ROLE OF LAW SOCIEITES

Law societies in Canada must act to guide and educate their lawyers on the jury selection process,

on three main bases. First, law societies must provide enhanced guidance on jury challenge

procedures as a means of protecting the public interest in the practice of law. Second, such

guidance from the law societies is appropriate, because significant competency issues are

7 Richard Delgado and Jean Stefancic, Critical Race Theory: an Introduction (New York: New York University

Press 2001) at 6; Carol A Aylward, Canadian Critical Race Theory: Racism and the Law (Halifax: Fernwood

Publishing 1999) at 30. 8 Aylward, supra note 7 at 30.

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implicated when lawyers fail to challenge for cause, or when challenges are misused. Finally, law

societies must enhance lawyers’ duties with respect to challenge procedures, because, in this

critical moment in Canadian legal history, to fail to guide lawyers on jury selection processes risks

rendering regulatory goals respecting cultural competence merely symbolic.

1.1 Protection of the Public Interest

Law societies, such as the Nova Scotia Barristers’ Society (NSBS), exist to protect the interests of

the public and uphold the public’s faith in the administration of justice.9 However, the jury’s

acquittal of Gerald Stanley in the shooting death of Colten Boushie has led many members of the

public to question whether, given the lack of Indigenous representation on the jury, the Canadian

justice system is capable of achieving any kind of justice for Indigenous peoples at all.10

The Stanley case has divided the country on the issue of firearms rights and brought racial

tensions between Indigenous and non-Indigenous peoples in Saskatchewan to a boiling point.11

The events of the case occurred on August 9, 2016, when Colten Boushie and four other Indigenous

young people drove onto the property of Gerald Stanley, because their vehicle had a flat tire.12 A

confrontation occurred between the Indigenous youth and Stanley, and Stanley shot and killed

Boushie.13 Stanley was charged with second-degree murder of Boushie on August 11, 2016.14 In

the following weeks, public opinion sharply divided on the right to defend one’s property and

racial tensions in the Saskatchewan communities surrounding the event escalated to the point that

Saskatchewan Premier Brad Wall made a public statement calling on people in Saskatchewan “to

9 NSBS, “Nova Scotia Barristers’ Society Vision & Values” (17 June 2016). 10 Naiomi Metallic, “I am a Mi’kmaq lawyer, and I despair over Colten Boushie”, The Conversation (18 March

2018). 11 Ian Austen, “A Murder Trial Stirs Emotions About Canada’s Relations With Indigenous Population”, The New

York Times (9 February 2018). 12 Andrea Hill, “Colten Boushie shooting: A timeline”, Saskatoon StarPhoenix (8 August 2017). 13 Austen, supra note 11. 14 Hill, supra note 12.

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rise above intolerance.”15 Stanley was released on bail—a privilege, one commentator noted, “that

too many Indigenous people have themselves been denied for far lesser crimes.”16

Prior to trial, 750 potential jurors were summoned to the selection process in Battleford,

Saskatchewan.17 Jury candidates who appeared to be Indigenous were blocked by Stanley’s

defence counsel through the use of peremptory challenges.18

Under s. 634(1) of the Criminal Code, both the Crown and the defence have the right to

challenge a juror peremptorily.19 Peremptory challenges “allow the accused or the Crown to

dismiss a potential juror without explanation.”20 The number of peremptory challenges allowed in

each trial depends on the charge.21 Peremptory challenges are one of three ways potential jurors

can be challenged. The accused or the prosecutor may also challenge the “array”, meaning a

challenge to the panel of jurors assembled on the basis of “partiality, fraud or wilful misconduct

on the part of the sheriff or other officer by whom the panel was returned.”22 Finally, both the

prosecutor and the accused are entitled to an unlimited number of challenges “for cause.”23 The

possible “causes” on which a juror may be challenged are enumerated in the Criminal Code, the

most relevant of which is that “a juror is not indifferent between the Queen and the accused.”24 Put

15 Ibid. 16 Andray Domise, “What the tragedy of Colten Boushie says about racism in Canada”, Maclean’s (26 August

2016). 17 Kyle Edwards, “Saskatchewan officials skipped a step when they formed Gerald Stanley’s jury”, Maclean’s (31

March 2018) [Edwards, “Saskatchewan officials skipped a step”]. 18 Ibid. 19 Criminal Code, RS C 1985, c C-46, s 634(1). 20 Steve Coughlan, Criminal Procedure, 3rd ed (Toronto: Irwin Law 2016) at 364; Criminal Code, RS C 1985, c C-

46, s 634(1). 21 Criminal Code, RS C 1985, c C-46, s 634(1); Coughlan, supra note 20 at 385. 22 Criminal Code, RS C 1985, c C-46, s 629(1). 23 Criminal Code, RS C 1985, c C-46, s 638(1). 24 Criminal Code, RS C 1985, c C-46, s 638(1)(b).

6

simply, “a ‘challenge’ was, and is, a means by which a party to a case could prevent potential

jurors from sitting on the jury.”25

In the Stanley case, the defence used the peremptory challenge as a tool to secure an all-

white jury, which acquitted Stanley of both second-degree murder and manslaughter on February

9, 2018,26 in a decision that has been described as “shocking.”27 The Province of Saskatchewan

decided not to appeal the acquittal.28 Prime Minister Justin Trudeau publicly expressed

disappointment following the jury’s decision, commenting that “we have come to this point as a

country far too many times.”29 Although Trudeau was criticized for remarking on the decision,30

his comments speak to the level of public scrutiny directed at this rural Saskatchewan trial.

The acquittal of Stanley has threatened public confidence in the role of the Crown and the

administration of justice as a whole, as criminal procedure was used to stage all-white optics in a

trial that the country watched. Much of the outcry following the verdict has centered around the

failure of the Canadian justice system to deliver justice for Indigenous peoples. Naiomi Metallic

explained that “the verdict sent the message that [Indigenous] lives are not as important, and that

many Canadians saw this as placing defence of property above a human life.”31 Moreover,

commentators have raised concerns that the verdict “tarnishes efforts toward reconciliation” and

25 R Blake Brown, “Challenges for Cause, Stand-Asides, and Peremptory Challenges in the Nineteenth Century”

(2000) 38:3 Osgoode Hall LJ 453 at 456. 26 “Colten Boushie and beyond: A primer on the aftermath of Gerald Stanley’s acquittal”, The Globe and Mail (13

February 2018). 27 David M Tanovich, “How racial bias likely impacted the Stanley verdict”, The Conversation (5 April 2018)

[Tanovich, “How racial bias likely impacted”]. 28 Edwards, “Saskatchewan officials skipped a step”, supra note 17. 29 Leyland Cecco, “Canada: Indigenous groups urge reform after shock of white farmer’s acquittal”, The Guardian

(12 February 2018). 30“The Colten Boushie case: Canadians divided on jury’s verdict, but think Trudeau was wrong to weigh in”, Angus

Reid Institute (26 February 2018); Lee Berthiaume, “Trudeau’s Comments on Gerald Stanley Acquittal Are

Inappropriate, Conservative MPs Say”, Huffington Post (11 February 2018); J John Geddes, “Did Trudeau cross a

line commenting on the Stanley verdict?”, Maclean’s (27 February 2018). 31 Metallic, supra note 10.

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“deepens Indigenous peoples’ distrust in the justice system.”32 The jury’s decision sends the

message that the Canadian justice system does not work the same way for Indigenous peoples, and

this message is relayed most definitively through the way in which the legal tool of the peremptory

challenge was used to eliminate all potential Indigenous jurors. David Tanovich explains:

[The exclusion of all potential Indigenous jurors] would have sent a powerful

message to the jurors who witnessed this and who were selected to serve that

Indigenous perspectives were irrelevant or could not be trusted. The ‘us’ versus

‘them’ racial dynamics of the case and any other pre-existing racial bias would have

been reinforced by this exclusionary process.33

The Crown in this case did not object to the defence’s use of peremptory challenges, nor did it

challenge any potential jurors for cause in an attempt to assess and eliminate racial biases.34

Although there is no right in Canada to be tried by a jury “whose members share the same personal

characteristics as the accused,”35 the modern jury “was envisioned as a representative cross-section

of society, honestly and fairly chosen.”36 Justice L’Heureux-Dubé described the modern

conception of the jury in R. v. Sherratt in 1991:

The jury, through its collective decision making, is an excellent fact finder; due to

its representative character, it acts as the conscience of the community; the jury can

act as the final bulwark against oppressive laws or their enforcement; it provides a

means whereby the public increases its knowledge of the criminal justice system

and it increases, through the involvement of the public, societal trust in the

system as a whole [emphasis added].37

In this context, L’Heureux-Dubé’s comments highlight the ways in which the exclusion of

Indigenous jurors creates a rift of mistrust in the justice system, regardless of the verdict.

32 Kyle Edwards, “The Gerald Stanley verdict is a blow to reconciliation—and a terrifying one at that”, Maclean’s

(10 February 2018) [Edwards, “A blow to reconciliation”]. 33Tanovich, “How racial bias likely impacted”, supra note 27. 34 David Tanovich, “Boushie’s family—and our justice system—deserves answers. So why no appeal?”, The Globe

and Mail (8 March 2018) [Tanovich, “Why no appeal?”]. 35 Boutilier, supra note 2; R v Biddle, [1995] 1 SCR 761, 22 OR (3d) 128 at para 57. 36 R v Sherratt, [1991] 1 SCR 509, 1991 CanLII 86 (SCC) at para 31. 37 Ibid at para 30.

8

The exclusion of Indigenous and racialized minorities from juries is a longstanding,

historical problem. Several commentators have drawn comparisons between the Stanley case and

another event in Battleford, in 1885, in which an all-white jury convicted six Cree and two

Assinboine men to death by hanging, without counsel or translators.38 Kent Roach extended this

historical comparison to Nova Scotia:

There is a straight line from 1885 to the present. It includes the wrongful conviction

of 19-year-old Mi’kmaq man Donald Marshall Jr. by an all white Nova Scotia jury

in 1971. No Indigenous person had ever served on a jury in Nova Scotia reflecting

in part the use of property tax and voter rolls that have excluded Indigenous

persons.39

This history, David Milward argues, has “given rise to a perception that when it is an Indigenous

person who is a crime victim, the justice system will not take it as seriously as in cases of non-

Indigenous victims.”40

With the public’s interest in the justice system so clearly and widely shaken, it is imperative

for law societies to act. The stated purpose of the NSBS is “to uphold and protect the public interest

in the practice of law”41 by establishing standards of professional responsibility and competence,

and by seeking to improve the administration of justice in Nova Scotia.42 Indeed, calls for action

on the part of law societies to deal with the problem of jury representation are not new. In his 2013

report on First Nations jury representation in Ontario, The Honourable Frank Iacobucci

recommended that “Ontario should sponsor a Continuing Professional Development course

certified by the Law Society of Upper Canada that addresses the representation issue.”43 Similarly,

38 Kent Roach, “The Urgent Need to Reform Jury Selection after the Gerald Stanley and Colten Boushie Case”

(2018) 65 Crim LQ 271 [Roach, “The Urgent Need to Reform”]. 39 Ibid. 40 David Milward, “What could reform look like, after the fury over the Stanley acquittal?”, Maclean’s (14 February

2018). 41 Legal Profession Act, SNS 2004, c 28, s 4(1). 42 Legal Profession Act, supra note 41 at s 4(2). 43 Iacobucci Report, supra note 3 at 99.

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the 1989 findings by the Royal Commission on the Donald Marshall, Jr., Prosecution

recommended that “the Nova Scotia Barristers Society develop a continuing liaison program with

Native people and educate its members regarding the special needs of Native clients” and that “a

study be done concerning proportional representation of visible minorities on juries.”44 At this

moment in Canadian history, the Stanley trial has become “an intense lightning rod for the feelings

of resentment by Indigenous peoples towards the justice system”45 requiring immediate

ameliorative action on the part of law societies who purport to defend the public interest in the

administration of justice.

1.2 Jury Challenges as a Competency Issue

It is appropriate and necessary for law societies to provide enhanced guidance on jury challenges

and juror representation to the lawyers they regulate, because significant competency issues are

implicated when lawyers fail to challenge for cause, or when challenges are misused.

In its 2011 decision in R v Fraser, the Nova Scotia Court of Appeal (NSCA) considered

the failure of defence counsel to advise a client as to the statutory right to challenge for cause.46 In

particular, the NSCA considered defence counsel’s failure to instruct his client on the possibility

of a race-based challenge for cause, following the 1993 ONCA decision of R v Parks.47

R v Parks was an appeal from a trial judge’s decision not to allow a challenge for cause to

potential jurors based on racial prejudice. Parks was a black drug dealer and the deceased was a

white cocaine user.48 The accused sought to question potential jurors on whether they would be

able to judge the case “without bias, prejudice or partiality” given “that the person charged [was]

44 The Royal Commission on the Donald Marshall, Jr Prosecution, supra note 3 at 12. 45 Milward, supra note 40. 46 R v Fraser, 2011 NSCA 70, 273 CCC (3d) 276. 47 R v Parks, 15 OR (3d) 324, 24 CR (4th) 81. 48 Ibid at para 2.

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a black Jamaican immigrant and the deceased is a white man?”49 At the ONCA, Justice Doherty

quashed the conviction and ordered a new trial on the basis that “the appellant was denied his

statutory right to challenge for cause.”50 Justice Doherty emphasized that the “significance of the

challenge process to both the appearance of fairness, and fairness itself, must not be

underestimated.”51,52 It is against the backdrop of R v Parks that the NSCA approached its analysis

in R v Fraser.53

Fraser, a black high school teacher, was accused of sexually touching a 15-year-old white

female student. Following jury selection, Fraser indicated to his counsel that he was concerned

that the jury was all-white. In response, Fraser’s counsel advised him that nothing could be done,

and that he had “gotten lots of black guys off before with all white juries.”54 The NSCA allowed

the appeal and ordered a new trial on the basis of ineffective assistance of trial counsel.

Justice Saunders held that trial counsel’s “failure to provide advice to the appellant in

response to his client’s explicit and perfectly reasonable inquiries, effectively denied him his

statutory right to challenge potential jurors for cause.”55 Justice Saunders emphasized that this

failing “in and of itself would justify a new trial.”56 These comments from the NSCA in R v Fraser

indicate that an understanding of and ability to advise one’s client on race-based challenges for

cause is a basic competency required by defence counsel.

Devlin and Layton argue that Fraser’s counsel’s failure to advise his client of the possibility

of race-based challenges for cause may be read as an example of “cultural incompetence,” which

49 Ibid at para 16. 50 Ibid at para 93. 51 Ibid at para 28. 52 R v Parks has been approved by the SCC in R v Williams, 1998 CanLII 782 (SCC), [1998] 1 SCR 1128 and R v

Spence, 2005 SCC 71, [2005] 3 SCR 458. 53 R v Fraser, supra note 46 at para 65. 54 Ibid at para 69. 55 Ibid at para 76. 56 Ibid at para 78.

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they describe as “a situation where a lawyer lacks the knowledge, skills and attitude to relate to

the social context of his or her client, and is thereby incapable of appropriately advancing the

client’s rights and legitimate interests at trial.”57 In Fraser, trial counsel lacked the “knowledge,

skills and attitude to properly appreciate and address his client’s concerns in facing an all-white

jury in Nova Scotia, a province with a disturbing history of race relations.”58 The case, they

contend, can “serve as a catalyst” for further inquiry into what law societies are doing to ensure

that the lawyers they regulate are culturally competent.59

While law societies such as the NSBS provide regular cultural competency training,60 the

only NSBS Code of Professional Conduct (“the Code”) provision specific to juror challenges is

Rule 5.5-1, which states that a lawyer “may investigate a prospective juror to ascertain any basis

for challenge.”61 However, a duty to challenge jurors in the interests of eliminating racial

prejudices may be grounded in Rule 5.1-1 of the Code, which pertains to the lawyer’s role in

adversarial proceedings. Commentary to the Rule explains:

In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly

every issue, advance every argument and ask every question, however distasteful,

that the lawyer thinks will help the client’s case and to endeavour to obtain for the

client the benefit of every remedy and defence authorized by law. The lawyer must

discharge this duty by fair and honourable means, without illegality and in a manner

that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness,

courtesy and respect and in a way that promotes the parties’ right to a fair hearing

in which justice can be done.62

57 Richard Devlin and David Layton, “Culturally Incompetent Counsel and the Trial Level Judge: A Legal and

Ethical Analysis” (2014) 60 Crim LQ 361. 58 Ibid. 59 Ibid. 60 Emma Halpern, “Community engagement and commitment to social justice: A keynote addresses by the Society’s

Equity & Access Officer”, The Society Record (2015); NSBS, “Equity & Access: Resources for lawyers and law

students”, online: http://nsbs.org/resources-lawyers-and-law-students; Jill Perry, “Call to Action #27: The cultural

competence imperative”, The Society Record (2015). 61 Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: NSBS, 2011, ch 5.5-1 [“Code of

Conduct”]. 62 Ibid at ch 5.1-1[1].

12

Lawyers must be educated on the Parks decision and its potential extension in Indigenous contexts

through the SCC’s decision in R v Williams, which addressed challenges in the jury selection

process in the case of an Indigenous accused.63 By providing additional, explicit guidance on the

duties of defence counsel to raise challenges for cause in the interests of racially representative

and unbiased juries, law societies may set baseline expectations for cultural competency

requirements in the lawyers they regulate during jury selection processes.

Moreover, while the issue did not arise in the Stanley case, commentators have questioned

the Crown’s frequent use of peremptory challenges to remove potential Indigenous jurors when

prosecuting Indigenous defendants.64 The Code of Conduct should be amended to provide further

guidance to the prosecution on fair and equitable use of peremptory challenges, consistent with

the Crown’s existing duty to “act for the public and the administration of justice resolutely and

honourably.”65 Commentary on Rule 5.1-3 states:

When engaged as a prosecutor, the lawyer’s primary duty is not to seek to convict

but to see that justice is done through a fair trial on the merits. The prosecutor

exercises a public function involving much discretion and power and must act fairly

and dispassionately [emphasis added].66

Prosecutors must, therefore, be educated on the systemic and lasting effects of colonialism on

Indigenous peoples in the justice system and guided on how to exercise peremptory challenges in

a way that ensures trial fairness—rather than merely ensuring convictions.

In the Stanley case, the Crown did not exercise any challenges for cause, and did not object

to defence counsel’s use of peremptory challenges.67 Given the interracial nature of the crime in

this case and the history of racial tension in Battleford, several commentators have argued that

63 R v Williams, 1998 CanLII 782 (SCC), [1998] 1 SCR 1128. 64 The Manitoba Aboriginal Justice Inquiry, supra note 3 at Appendix I: Juries. 65 Code of Conduct, supra note 60, ch 5.1-3. 66 Ibid, ch 5.1-3[1]. 67 Tanovich, “Why no appeal?”, supra note 34.

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there was a “heightened need for such a challenge.”68 The proverbial stakes are high: challenges

for cause are “necessary to ensure the accused’s constitutional right to be tried by an impartial jury

under s.11(d) of the Charter, and [are] also justified as an anti-discrimination measure pursuant to

s.15 of the Charter.”69

As a result, it is important that lawyers receive adequate training on how to appropriately

advise and exercise challenges for cause. However, lawyers lack significant training to be able to

competently engage in such challenges. Fraser provides a striking—if particularly egregious—

example of such a failure in cultural competency.70 Miriam Henry and Frances Henry explain:

[L]awyers are not sufficiently trained in issues of race prejudice. Since few law

schools include such issues in their curriculum, lawyers are often unfamiliar with

how social policy issues relate to the law. 71

Given the knowledge and skill required to competently exercise juror challenges, race-based

challenges for cause are most appropriately characterized as an area of competency that law

societies can and should regulate.

1.3 Meaningful Fulfilment of Regulatory Goals

In order to meaningfully fulfill current regulatory objectives regarding equality and access to

justice, law societies must take action to articulate and affirm the ethical duties of lawyers in the

jury selection process. The current Regulatory Objectives of the NSBS are as follows:

1. Protect those who use legal services.

2. Promote the rule of law and the public interest in the justice system.

3. Promote access to legal services and the justice system.

4. Establish required standards for professional responsibility and competence in the

delivery of legal services.

68 Ibid. 69 Devlin & Layton, supra note 57. 70 Fraser, supra note 52. 71 Miriam Henry and Frances Henry, “A Challenge to Discriminatory Justice: the Parks Decision in Perspective”

(1996) 38 Crim LQ 333.

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5. Promote diversity, inclusion, substantive equality and freedom from discrimination

in the delivery of legal services and the justice system.

6. Regulate a manner that is proactive, principled and proportionate.72

These Regulatory Objectives demonstrate the NSBS’s goal to produce lawyers that are culturally-

competent in their practice. By failing to explicitly and proactively guide lawyers on juror selection

procedures, the NSBS risks rendering such objectives merely symbolic.

Regulating the use of jury challenges may be the subject of criticism, on the basis that such

an approach inappropriately dictates lawyers’ trial strategy. Indeed, a great degree of deference is

paid by courts to the individual discretion and strategic choices of lawyers. In ineffective assistance

appeals, for example, courts will not scrutinize individual lawyers’ trial strategies absent a prima

facie case of prejudice to the appellant.73 The recent controversy surrounding the mandated

adoption of individual Statements of Principles by the Law Society of Ontario provides an

interesting counterpoint to any argument for an enhanced role for law societies with respect to

substantive equality.

In response to the 2016 release of a report on challenges faced by racialized licensees in

Ontario, “Working Together for Change: Strategies to Address Issues of Systemic Racism in the

Legal Professions,” the Law Society of Ontario (LSO) sought to implement one of the report’s

recommendations by requiring all licensees to “create and abide by an individual statement of

principles that acknowledges their obligation to promote equality, diversity and inclusion generally

and in their behaviour toward colleagues, employees, clients and the public.”74 Although suggested

templates are provided, lawyers are free (and encouraged) to draft their own statements, provided

that those statements acknowledge their individual obligations as members of the legal profession

72 NSBS, “NSBS Regulatory Objectives,” online: http://nsbs.org/nsbs-regulatory-objectives. 73 R v GDB, [2000] 1 SCR 520, 2000 SCC 22 (CanLII) at para 29. 74 Fernando Garcia, “Statement of Principles critics: Stop fighting against us”, Canadian Lawyer Magazine (18

December 2017).

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to promote equality, diversity and inclusion.75 The proposed Statement of Principles has been

criticized for compelling speech,76 and for seeking to enforce a new, positive duty on lawyers

without legal basis.77

An enhanced regulatory role with respect to jury challenges can be distinguished from the

LSO Statement of Principles controversy in two key respects. First, enhanced guidance on jury

selection practices is action-based and has no bearing on the individual beliefs of prosecution or

defence counsel. Secondly, enhanced guidance on jury selection practices serves to elaborate upon

existing duties of the lawyer as an advocate under Rule 5.1 of the Model Code. Carol Aylward

argues: “Raising a live and relevant issue such as race is not only an advocate’s duty; disregarding

that duty may perpetuate the role that race plays in law.”78 Action from law societies on juror

challenges would add substance to aspirational Regulatory Objectives by providing a means

through which lawyers may be proactively trained and, where necessary, responsively disciplined

for failing to practice in a culturally competent manner.

Furthermore, guidance respecting jury selection processes would be an important element

of the NSBS’s current shift toward a proactive model of regulation. The NSBS is currently moving

from a traditional model of regulation—that is “primarily a reactive-complaints-driven process”—

to a proactive model.79 Proactive regulation is compliance-based; regulators identify and set goals

75 Law Society of Ontario, “Statement of Principles – Templates”, online:

https://www.lsuc.on.ca/with.aspx?id=2147504074. 76Alex Robinson, “Professor challenges statement of principles in court”, Canadian Lawyer Magazine (7 November

2017); Christie Blatchford, “It’s 1984 all over again for Ontario lawyers arguing against compelled speech”,

National Post (8 November 2017); Arthur J Cockfield, “Limiting Lawyer Liberty: How the Statement of Principles

Coerces Speech” (2018) Queen’s Law Research Paper Series; Jacques Gallant, “Lawyers challenging part of Law

Society of Upper Canada plan to address racism”, The Toronto Star (23 October 2017). 77 Gabrielle Giroday, “Online campaign questions LSO statement of principles”, Canadian Lawyer Magazine (12

February 2018). 78 Aylward, supra note 7 at 138. 79 Ross Earnshaw, “Promoting Better Practices—a Proactive Approach to Lawyer and Paralegal Regulation”, Slaw

(12 February 2016); NSBS, “Legal Services Regulation”, online: http://nsbs.org/legal-services-regulation.

16

and expectations, and lawyers “report on their compliance with these expectations, and have

autonomy in deciding how to meet them.”80 Rather than disciplining trial counsel in Fraser, for

example, a proactive regulatory model would seek to avoid such need for disciplinary action by

setting clear expectations and educational outcomes for lawyers to challenges for cause on racial

grounds, and other cultural competency concerns (in addition to discipline, as appropriate, where

lawyers’ conduct fails to meet the required standard.)

Therefore, in order to meaningfully meet its Regulatory Objectives, law societies can and

should provide explicit professional and ethical guidance on the jury selection process to the

lawyers they regulate.

2. A ROLE FOR CRITICAL RACE THEORY

2.1 What is Critical Race Theory?

Critical race theory (CRT) is a legal philosphy premised on a series of key concepts, the most

fundamental of which is that racism is present in the everyday experiences of all people.81 The

foundational tenet of CRT can be summarized by Justice Blackmun of the United States Supreme

Court his decision in Regents of the University of California v Bakke, a 1978 American case on

affirmative action in university admissions, in which he stated: “In order to get beyond racism, we

must first take account of race. There is no other way.”82 CRT requires an active process of

deconstructing legal frameworks as a means of challenging “the so-called ‘neutrality’ and

‘objectivity’ of laws that oppress Blacks and other people of colour.”83 It is premised on making

race and racism visible in legal structures and processes.

80 Earnshaw, supra note 79. 81 Delgado & Stefancic, supra note 7 at 6-7. 82Regents of Univ. of California v Bakke, 438 US 265. (1978) (USSC). 83 Aylward, supra note 7 at 34.

17

In practice, CRT asks two key questions: “(1) whether a rule of law or legal doctrine,

practice, or custom subordinates important interests and concerns of racial minorities and (2) if so,

how is this problem best remedied?”84 This line of inquiry is central to the project of CRT, which

builds upon the analytical work of Critical Legal Theory. Critical legal theory seeks to deconstruct

(or “trash”) legal frameworks as a means of exposing the ways in which law perpetuates

inequality.85 CRT takes up the work of deconstruction and builds upon it, to what Aylward refers

to as “the next vital stage of ‘reconstruction.’”86 Reconstruction focuses on redesigning legal

structures and processes to use law as a means of improving the social conditions of people of

colour.87

Following the Stanley trial, there is a clear role for deconstruction and reconstruction in

the Canadian jury selection process. In order to improve racial representation and eliminate racial

bias in Canadian juries, the implicit and insidious role of racism in Canadian society must be made

visible. By adopting an explicit CRT approach in its education programming and professional

guidance to lawyers, law societies can serve a critical role in calling out racism in the courtroom,

thus pushing jurors, lawyers and judges to critically assess their own biases.

2.2 Critical Race Theory and Jury Selection: Deconstruction

The project of deconstructing the jury selection process reveals two key aspects that perpetuate

the subordination of people of colour. First, the lack of Indigenous or racialized representation on

juries allows the unconscious biases of jurors to remain unchecked. Second, the systemic exclusion

of Indigenous peoples from Canadian juries communicates to Indigenous and non-Indigenous

84 Dorothy A Brown, Critical Race Theory: Cases, Materials and Problems (St Paul: Thomson/West 2007) at 3. 85 Aylward, supra note 7 at 28. 86 Ibid. 87 Ibid at 34.

18

peoples alike that those perspectives are less valuable than the those of the white individuals that

are selected.

Cynthia Petersen explains that white jurors “are most likely to be influenced by racial

stereotypes because they tend to have the least awareness about the dynamics of racism and they

tend to have the least contact with communities of colour.”88 Such stereotypes “affect how

evidence is interpreted, remembered and assessed.”89 It is, therefore, less likely that all-white juries

will be compelled to confront their biases in the jury room, allowing unconscious racism to

underlie decision-making. Petersen proposes that juries representing both the victim and

defendant’s race “may therefore correct an imbalance of attitudes which might otherwise govern

the outcome of the trial.”90

Furthermore, Petersen explains that Indigenous defendants and victims “are likely to

experience a sense of alienation in this all-white environment.”91 This problem was starkly borne

out in the Stanley trial. Erica Violet Lee, a Cree woman who attended the trial, described:

We looked up at the front of the court room and you could see everyone in charge

of our fate was white […] And above it all, there is a picture of the Queen looking

over the court room. We realized this is not a system set up for us: this is not a

system set up to keep us safe.92

This sense of alienation impacts on both Indigenous defendants and victims. With respect to

defendants, Petersen explains: “The absence of jurors of their own race increases the likelihood

that there will be barriers to their ability to convey their version of the facts.”93 Moreover, Miriam

Henry and Frances Henry explain that in all-white courtroom situations, even before the jury is

88 Petersen, supra note 2 at 164. 89 Henry & Henry, supra note 71. 90 Petersen, supra note 2 at 164. 91 Ibid. 92 Cecco, supra note 29. 93 Petersen, supra note 2 at 164.

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selected, the racialized accused “is aware of racial inequality in the court-room and this results in

blacks being more susceptible than other groups to plea bargaining and to other compromises by

which the right to a jury trial is waived.”94 For victims, Petersen argues that the lack of racial

representation on juries “trivializes and condones their victimization.”95 As demonstrated by Lee’s

reaction to the all-white courtroom during the Stanley trial, the over-representation of white people

on juries suggests that the perspectives and values of white people “are more legitimate than the

values, judgment and perspectives of those who are underrepresented.”96

Juries serve an important symbolic purpose in our justice system that cannot be disregarded

in this analysis, but they also serve, practically, to set and affirm community norms and values.

Alice Woolley points out that, in 2011, 18% of the population of Saskatchewan was Indigenous

and yet, in 2017, the entire jury in the Stanley trial was white.97 Woolley argues that “if juries act

as the conscience of the community, it is wrong to have juries that so obviously—as in the Stanley

case—do not represent the demographics of their community.”98 The overrepresentation of white

jurors, therefore, perpetuates the systemic exclusion of Indigenous peoples and people of colour

from the justice system and Canadian society as a whole.99

2.3 Critical Race Litigation in Action: Reconstruction

While an “imbalance of attitudes”100 on juries may in some situations be inevitable, CRT has a

clear role in mitigating this imbalance through the tool of counterstorytelling. Counterstorytelling

is the act of providing background information into the unique circumstances faced by a particular

94 Henry & Henry, supra note 71. 95 Petersen, supra note 2 at 165. 96 Ibid. 97 Alice Woolley, “An Ethical Jury? Reflections on the Acquittal of Gerald Stanley for the Murder/Manslaughter of

Colten Boushie”, Slaw (20 February 2018). 98 Ibid. 99 Petersen, supra note 2 at 165. 100 Ibid at 164.

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person or community of colour, often by leading evidence. Critical race theorists seek to

“challenge, displace, or mock” existing narratives associated with racial stereotypes of criminality

through the act of counterstorytelling.101 Such racial stereotypes dominated much of the online

discourse regarding the Stanley trial,102 and many commentators fear that such stereotypes

influenced the jury’s decision-making process.103 Andray Domise describes the insidious

pervasiveness of racial stereotypes in Canadian society:

Despite the outward claims and appearances that give our justice system legitimacy,

racial stereotypes have long polluted the process. The stereotype of the Native who

drinks, and who steals, as with the stereotype of the negro who kills and rapes, has

existed in Canadian culture for generations.104

Richard Delgado and Jean Stefancic contend that such stereotypes “are probably at least as

determinative of outcomes as the formal laws, since they supply the background against which the

latter are interpreted and applied.”105 In the context of juries (and judges), therefore, racial

stereotypes have the dangerous potential to shape verdicts. Counterstorytelling may mitigate this

risk. Delgado and Stefancic argue that: “[p]owerfully written stories and narratives may begin a

process of adjustment in our system of beliefs and categories by calling attention to neglected

evidence and reminding readers of our common humanity.”106 Counterstorytelling is, thus, both

an act of decontstruction—of breaking down preconceived notions—and reconstruction, as it is an

active process through which jurors, judges, lawyers or other actors in the legal system are

challenged to re-think and re-frame their perspectives.

101 Delgado & Stefancic, supra note 7 at 42-43. 102 Shree Paradkar, “Post Colten Boushie verdict, is Twitter taking sides?”, The Star (21 February 2018); Keith Thor

Carlson, Keith Thor Carlson, “Social media full of vitriolic myths in the aftermath of the Stanley trial”, The

Conversation (22 February 2018). 103 Tony Pass, “A modest proposal concerning bias in the jury system”, The Lawyer’s Daily (23 March 2018). 104 Domise, supra note 16. 105 Delgado & Stefancic, supra note 7 at 43. 106 Ibid.

21

Counterstorytelling has played a significant role in Canadian jurisprudence, notably in the

areas of sentencing, with respect to the legal concept of the reasonable person, and through the

practice of challenging for cause. A brief overview of the ways in which counterstorytelling

functioned in these cases serves to demonstrate why and how the adoption of an explicit critical

race litigation strategy on the part of Canadian law societies may serve to ameliorate the problem

of unrepresentative juries and unchecked racial biases in the jury room.

2.3.1 Sentencing and R v Gladue

The SCC’s decision in Gladue may be read as an adoption of counterstorytelling in the sentencing

process. R v Gladue is a 1999 decision of the SCC in which the Court considered section 718.2(e)

of the Criminal Code for the first time.107 Section 718.2(e) directs trial courts to consider “all

available sanctions, other than imprisonment, that are reasonable in the circumstances and

consistent with the harm done to the victims or to the community” in sentencing all offenders,

“with particular attention to the circumstances of Aboriginal offenders.”108 Gladue was a 19-year-

old Cree woman. She fatally stabbed her common law husband, who was also Indigenous, during

an argument.109 She pled guilty to manslaughter and was sentenced to three years’

imprisonment.110 Gladue appealed her sentence, “on the grounds that the trial judge erred in not

following the directives set out in section 718.2(e) of the Criminal Code.”111

In its decision, the SCC laid out the factors that “should be taken into account by a judge

sentencing an aboriginal offender.”112 The Court directed sentencing judges to consider, inter alia,

107 R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC). 108 Criminal Code, RS C 1985, c C-46, s 718.2(e). 109 Gladue, supra note 105. 110 Ibid at para 7; 13. 111 Carmela Murdocca, To Right Historical Wrongs: Race, Gender, and Sentencing in Canada (Vancouver: UBC

Press 2013) at 80. 112 Gladue, supra note 107.

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“the unique systemic or background factors which may have played a part in bringing the particular

aboriginal offender before the courts.”113 In order to do so, the Court explained, trial judges “will

require information pertaining to the accused” and may “take judicial notice of the broad systemic

and background factors affecting aboriginal people.”114

This decision, and the Criminal Code provision that it serves to elaborate, are a call to make

race visible in sentencing. Kelsey Sitar describes the CRT approach taken by the SCC decision:

Taking a page directly from the Critical Race Theory textbook, the Supreme Court

thereby recognized the different treatment of non-aboriginal (read: White) persons

within the criminal justice system and that, to avert the crisis at hand, Aboriginal

persons must have their backgrounds and perspectives recognized, validated, and

incorporated into all aspects of the criminal justice system.115

Section 782(1)(e) and Gladue mandate contextual analysis, consistent with the fundamental

principles of CRT. Gladue reports are a kind of counterstorytelling, through which key contextual

information is provided to sentencing judges. Under section 782(1)(e) of the Criminal Code,

counterstorytelling is required as a means of informing sentencing decisions and bringing the

systemic oppression of Indigenous peoples into sharp focus.

It is important to note, however, that since the SCC’s decision in Gladue (and its 2012

reaffirmation of those principles in R v Ipeelee116) the overrepresentation of Indigenous offenders

in the criminal justice system has not diminished.117 Indigenous peoples “make up 20 per cent of

the federal penitentiary population, and as much as 70 to 80 per cent of the jail population in some

provinces, despite representing only 3 per cent of the Canadian population.”118

113 Ibid at para 93. 114 Ibid. 115 Kelsey L Sitar, “Gladue as a Sword: Incorporating Critical Race Perspectives into the Canadian Criminal Trial”

(2016) 20 Can Crim L Rev 247 at 5. 116 R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433. 117 Sitar, supra note 115 at 1. 118 Milward, supra note 40.

23

Therefore, Sitar calls for an expansion of the application of the principles arising out of

Gladue to a more proactive and preventative approach, rather than remedial.119 Sitar proposes: “It

is time for defence counsel to lead the charge against over-representation of Aboriginal persons in

our criminal justice system, applying these principles to the trial process and invoking the power

of Gladue before a conviction is ever rendered.”120 While Sitar does not directly consider jury

representation in this analysis, a proactive emphasis on rendering systemic racism visible in juror

selection would be an important aspect of such a front-end approach. In order for defence counsel

to “lead the charge”121 in this respect, law societies must take proactive measures to educate, train,

and guide defence counsel and Crowns on systemic racism in Canadian society, and on how to call

it out.

2.3.2 The Reasonable Person: RDS

The SCC’s decision in R v RDS122 demonstrated the power of the deliberate use of

counterstorytelling, which served to deconstruct the legal concept of the reasonable person and

reconstruct it in a way that uses law as a tool to lessen the subordination of people of colour.

In October 1993, RDS, a black 15-year-old, was arrested and charged while riding his

bicycle home, for allegedly interfering with the arrest of another youth, his cousin, when he

stopped to ask whether he should call his cousin’s mother. 123 In December 1994, RDS was tried

and acquitted by a black Youth Court Judge, Judge Sparks.124 In the course of delivering her oral

reasons and in response to a question by the Crown, Judge Sparks commented, regarding her

assessment of the credibility of RDS and the white police officer, that “police officers had been

119 Sitar, supra note 115 at 1. 120 Ibid at 10. 121 Ibid. 122 R v S (RD), [1997] 3 SCR 484, 1997 CanLII 324 (SCC) [RDS]. 123 Ibid; Aylward, supra note 7 at 83. 124 Aylward supra note 7 at 83.

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known to mislead the court in the past” and “had been known to overreact particularly with non-

white groups.”125 The Crown appealed to the Nova Scotia Supreme Court (Trial Division) on the

basis that the judge’s comments indicated a reasonable apprehension of bias.126 The Crown’s

appeal was allowed, and subsequently upheld by the NSCA.

Before the SCC, counsel for RDS contextualized the events between the black accused and

the White police officer within a larger history of systemic racism in Nova Scotia, through the use

of counterstorytelling. Aylward explains: “Narrative allowed the lawyers representing R.D.S. to

tell the story of the racial conflict between the police and the black community of Nova Scotia,

and indeed in the whole of Canada, at the time of the encounter.”127 With extensive evidence of

such systemic racism before the Court, the SCC was able to affirm that the reasonable person must

be aware of “the existence in the community of a history of widespread and systemic

discrimination against black and aboriginal people.”128 The Court directed that “judges may take

notice of actual racism known to exist in a particular society.”129 The Court’s recognition that it is

appropriate to take judicial notice of racism in Nova Scotia enhances the work of critical race

litigation moving forward, as it lessens the burden on the accused of providing the kind of

extensive counternarrative that was submitted in RDS.

2.3.3 Challenges for Cause: Parks and Williams

Judicial notice also played a key role in R v Parks and R v Williams—two cases which specifically

demonstrate the potential for the application of CRT in the jury selection process.130 In R v Parks,

briefly described in the first part of this paper, defence sought to ask potential jurors:

125 RDS, supra note 122. 126 Ibid. 127 Aylward, supra note 7 at 85. 128 RDS, supra note 122 at para 47. 129 Ibid. 130 Aylward, supra note 7 at 114.

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(1) whether their ability to judge witnesses without bias, prejudice or partiality

would be affected by the fact that the witnesses were involved in drugs, and (2)

whether their ability to judge the evidence without bias, prejudice. or partiality

would be affected by the fact that the accused was a black Jamaican immigrant and

the deceased was a white man. 131

At trial, counsel for Parks did not engage in the kind of counterstorytelling undertaken by counsel

in RDS. Counsel “did not call any evidence in support of the proposed challenge” but, rather,

“argued that anti-black racism in Toronto was a ‘notorious fact’” upon which the challenge could

be founded.132 The trial judge in Parks refused to permit the question.

With significant evidence of racial discrimination in Canada and in Toronto before it, a

majority of the Ontario Court of Appeal (ONCA) allowed the appeal on the basis that the accused

should have been able to challenge potential jurors for cause based on racial discrimination.133 In

finding that the trial judge did not adequately address the possibility that “one or more potential

jurors” may be biased against a black accused, the ONCA explained:

Racism, and in particular anti-black racism, is a part of our community’s psyche. A

significant segment of our community holds overtly racist views. A much larger

segment subconsciously operates on the basis of negative racial stereotypes.

Furthermore, our institutions, including. the criminal justice system, reflect and

perpetuate those negative stereotypes. These elements combine to infect our society

as a whole with the evil of racism.134

The Court in R v Parks, therefore, emphasized the importance of a contextual approach in jury

selection processes, which takes into account the broader “psyche” of the community in

safeguarding impartiality. The SCC approved of the ONCA’s reasoning in its decision in R v

Williams—a case which extended race-based challenges for cause to the Aboriginal context.

131 Parks, supra note 47 at para 16. 132 Ibid at para 20. 133 Ibid at para 93. 134 Ibid at para 54.

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In R v Williams, the accused was an Aboriginal man who pled guilty to a charge of robbery

in October 1993.135 At trial, Williams sought to challenge potential jurors “to determine whether

they [possessed] prejudice against aboriginals which might impair their impartiality.”136 The trial

judge dismissed the application to challenge potential jurors for cause, and distinguished the

ONCA’s decision in R v Parks on the basis that it was limited to a “perception in the community

of Toronto that black people were linked to violent crime.”137 The British Columbia Court of

Appeal (BCCA) upheld the trial judge’s decision. The SCC allowed the appeal. It held that “the

lower courts had set too high a standard for showing a realistic possibility of prejudice in these

circumstances” and that it is unreasonable to expect “that juror attitudes would be ‘cleansed’ by

instructions about how they should discharge their duties.”138 Justice McLachlin took judicial

notice of the existence of widespread prejudice against Indigenous peoples and noted, in particular,

that this prejudice has the potential to affect juror impartiality, through the proliferation of

“stereotypes that relate to credibility, worthiness and criminal propensity.”139

The right to challenge for cause is not automatic.140 The challenger must lead evidence to

be able to challenge for cause on racial grounds, the “threshold” for which was articulated by

L’Heureux-Dubé in R v Sherratt.141 While L’Heureux-Dubé emphasizes that the burden is not

expected to be significant, she explains that some evidence is required such that “a reasonable

degree of control [may] be retained by the trial judge.”142 L’Heureux-Dubé lays out the test for

challenging for cause:

135 Williams, supra note 63 at para 1. 136 Ibid. 137 Ibid at para 5. 138 Coughlan, supra note 20 at 380; Williams, supra note 63. 139 Williams, supra note 63 at para 58. 140 Coughlan, supra note 20 at 356. 141 R v Sherratt, [1991] 1 SCR 509, 1991 CanLII 86 (SCC) at para 64. 142 Ibid at para 63.

27

The threshold question is not whether the ground of alleged partiality will create

such partiality in a juror, but rather whether it could create that partiality which

would prevent a juror from being indifferent as to the result. In the end, there must

exist a realistic potential for the existence of partiality, on a ground sufficiently

articulated in the application, before the challenger should be allowed to proceed

[emphasis in original].143

Thus, a challenger must lead evidence—a kind of counterstorytelling—in order to displace the

presumption in Canadian law that potential jurors are impartial.144

The Court in Williams acknowledged the existence of widespread racial prejudice against

Indigenous peoples, and explained that judicial notice may be employed, where appropriate, to

eliminate the burden of displacing the presumption of impartiality. Justice McLachlin explained:

In the case at bar, the accused called witnesses and tendered studies to establish

widespread prejudice in the community against aboriginal people. It may not be

necessary to duplicate this investment in time and resources at the stage of

establishing racial prejudice in the community in all subsequent cases.145

In this way, the legal tool of judicial notice is a means by which existing law is used in a new way

to lessen the subordination of people of colour—as lawyers engage in critical race litigation

strategy by leading evidence of counternarrative in support of challenges for cause, the burden on

subsequent challengers is reduced through the tool of judicial notice.

However, it is important to acknowledge the key limitation of a CRT litigation strategy:

“without the consent and full participation of the client, raising issues of race in litigation can be

difficult, if not impossible.”146 While lawyers are duty-bound to fearlessly raise any issue that

could assist their client, they are also limited by the individual interests (and budgets) of their

clients. Law societies must, thus, contemplate the individual and financial costs associated with

143 Ibid at para 64. 144 Williams, supra note 63 at para 7. 145 Ibid at para 54. 146 Aylward, supra note 7 at 98.

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critical race litigation strategy in seeking to further the equality interests of Indigenous and

racialized defendants and victims in jury trials.

3. APPLICATION: CRITICAL RACE THEORY IN THE JURY SELECTION

PROCESS

While the ONCA and SCC’s decisions in Parks and Williams demonstrate the potential for CRT

in the jury selection process, the application of the principles arising out of those cases has been

limited in scope.147 In order to expand the use of “the Parks question,” both Crown and defence

lawyers must apprise themselves of the systemic factors affecting the lives of Indigenous peoples.

By providing further guidance on Rule 5.1-1 specific to the use of peremptory challenges and

challenges for cause, by educating lawyers on systemic racism affecting jury decision-making, and

by disciplining lawyers who fail to meet the required standard of cultural competency, law

societies can and should push forward the use of the law as a tool to address the problem of

unrepresentative juries in Canada.

There are three means by which counsel may challenge potential jurors: challenges to the

jury array, peremptory challenges, and challenges for cause. Jury array challenges were considered

by the SCC in the 2015 decision R v Kokopenace,148 in which a majority of the SCC held that

“there is no right to proportional representation on a jury roll or the actual jury.”149 In dissent,

Justice Cromwell emphasized his concerns that the “unintentional yet substantial under-

representation of [Indigenous peoples] from the jury roll inevitably […] casts a long shadow over

the appearance that justice has been done”.150 Commentators have called for Parliament to reverse

147 Rakhi Ruparelia, “Erring on the Side of Ignorance: Challenges for Cause Twenty Years after Parks” (2013) 92

Can Bar Rev 267 at 268 [Ruparelia, “Erring on the Side of Ignorance”]. 148 Kokopenace, supra note 4. 149 Roach, “The Urgent Need to Reform”, supra note 38. 150 Kokopenace, supra note 4 at para 304.

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the Kokopenace decision.151 However, at present, it is unlikely that challenges to the array pose a

significant chance of success in ameliorating the crisis of unrepresentative juries; legislative

reform is very unlikely, due—at least in part—to the Kokopenace decision. Indeed, Ruparelia

explains that “[m]eaningful vetting is even more critical now that the [SCC] has determined in R

v Kokopenace that juries can be deemed fair even if they are drawn from unrepresentative jury

rolls.”152 Thus, this section focuses on the potential application of CRT in peremptory challenges

and challenges for cause, as a means of addressing racism head-on.

3.1 Peremptory Challenges

Peremptory challenges, as discussed above, are a means of excusing potential jurors without any

required explanation. Because no reason is required for the removal of jurors, peremptory

challenges are sometimes used to make juries less representative and may be “a stone-cold

invitation for jury selection to be infected by conscious or unconscious racist stereotypes.”153

In 1991, the Aboriginal Justice Inquiry of Manitoba recommended that the Criminal Code

be amended to eliminate peremptory challenges.154 It found that the use of peremptory challenges

to exclude potential Indigenous jurors was “common practice” by both Crown attorneys and

defence counsel.155 In 2013, the Honourable Frank Iacobucci, in an independent review of First

Nations representation on juries in Ontario, recommended that the Criminal Code be amended to

“prevent the use of peremptory challenges to discriminate against First Nations people serving on

juries.”156 Following the Stanley verdict, the federal government responded to renewed public

151 Roach, “The Urgent Need to Reform”, supra note 38. 152 Rakhi Ruparelia, “Who are you calling racist? Challenging jurors for cause 20 years after Parks”, CBA National

Magazine (14 July 2015) [Ruparelia, “Who are you calling racist?”]. 153 Roach, “Our jury selection procedure is not fair”, supra note 1. 154 The Manitoba Aboriginal Justice Inquiry, supra note 3. 155 Ibid. 156 Iacobucci Report, supra note 3 at Recommendation 15.

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criticisms of peremptory challenges157 with the introduction of Bill C-75.158 Along with a series of

criminal justice and sentencing reforms, the bill would eliminate peremptory challenges entirely.159

However, Bill C-75 has also been the subject of criticism on the basis that its provisions pertaining

to jury processes are reactionary and fail to consider the real benefits that peremptory challenges

may have for racialized defendants and victims.160 If peremptory challenges are to be maintained,

law societies bear a responsibility to guide lawyers in using them ethically and in a way that

enhances access to justice for Indigenous peoples.

In support of the abolition of peremptory challenges, commentators often call attention to

the fact that countries such as the United Kingdom have already “abolished peremptory challenges

in the name of equity.”161 However, in response to such claims, it is important to note that much

of our legal history regarding peremptory challenges borrows from our American neighbours.

Blake Brown explains that affording peremptory challenges to the Crown in addition to the

accused is a mark of American influence on Canadian law, as “[n]o such right ever existed in

English practice.”162 This distinction is important, because if both sides have the power to remove

jurors peremptorily, then either side may use peremptory challenges in a responding manner to

increase representation, where possible.

As our Canadian version of peremptory challenges has been influenced by American law,

a brief overview of the state of such challenges in the U.S. context is appropriate. In Batson v

157 Sarah E Leamon, “Bill C-75 Fails to Deliver Necessary Changes to the Justice System”, The Huffington Post (17

April 2018). 158 Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make

consequential amendments to Other Acts, 1st Sess, 42nd Parl, 2018, (first reading 29 March 2018). 159 Ibid. 160 John Paul Tasker, “Lawyers say post-Boushie justice reforms could actually make juries less diverse”, CBC News

(30 March 2018); Aidan Macnab, “Stanley acquittal should not lead to scrapping peremptory challenges, say

criminal lawyers”, Canadian Lawyer Magazine (14 February 2018). 161 Tasker, supra note 160; Kent Roach, “A good first step towards diverse, impartial Canadian juries”, The

Conversation (2 April 2018) [Roach, “A good first step”]. 162 Brown, supra note 25 at 484.

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Kentucky,163 the United States Supreme Court (USSC) held that the use of peremptory challenges

to remove potential jurors on the basis of race violates the Equal Protection Clause and is, thus,

unlawful. Following Batson in the US, lawyers can exercise a “Batson challenge”—meaning that

one side can object to the other’s exercise of peremptory challenges, if it appears that those

challenges are being made on race-based grounds.164

Nader Hasan, a Canadian criminal defence lawyer, argues that peremptory challenges

should be maintained, and emphasizes that in everyday trial practice, criminal lawyers use

peremptory challenges as a “tool” to “pursue a diverse jury.”165 Hasan advocates for the adoption

of “Batson challenges” into Canadian jurisprudence, whereby lawyers can and should object where

“either side appears to use their challenges in a discriminatory manner.”166 This objection has the

potential to make race visible in the courtroom—by calling race out through the tool of the “Batson

challenge,” those in the courtroom “are sensitized from the outset of the proceedings to the need

to confront potential racial bias and ensure that it does not impact on the verdict.”167 Hasan argues

that in some places in the U.S., “the mere existence of the Batson process has a mitigating effect

on a prosecutor’s conduct.”168 Thus, the Batson challenge is a CRT tool, used to identify and

confront racial biases and to lessen the subordination of people of colour.

However, following Batson, “Batson challenges” have been limited in their practical

utility. In practice, when defence counsel object to the prosecution’s use of peremptory challenges

to remove potential jurors of colour, prosecutors often give race-neutral reasons for their

challenges, (for example, age or employment status) which are accepted by judges determining the

163 Batson v Kentucky, 476 US 79 (1986) (USSC). 164 Nader R Hasan, “Eliminating peremptory challenges make trials less fair”, The Star (10 April 2018). 165 Ibid. 166 Ibid. 167 Parks, supra note 47 at 92. 168 Hasan, supra note 164.

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final validity of such challenges.169 In response, and in defence of his call for lawyers to object to

the discriminatory use of peremptory challenges in Canada, Hasan argues:

I have no doubt that the Batson process may be illusory in some U.S. states, which

suffer from injustices that go far deeper than the jury selection process. But I have

a high regard for Canadian judges’ ability to adjudicate objections to discriminatory

peremptory challenges. Just because it does not work in Alabama does not mean it

won’t work in Canada.170

Indeed, Canadian courts have had occasion to consider the appropriateness of judicial intervention

where peremptory challenges are used in a discriminatory manner. In R v Gayle, the ONCA held

that “it follows from the quasi-judicial nature of the Crown’s discretionary powers and from the

overriding values of the Charter that there are circumstances where a court will review and

constrain the exercise of the Crown’s right of peremptory challenge.”171 The Court explained that

“public confidence in the administration of justice would be seriously undermined if Crown

counsel were permitted to exercise the power of peremptory challenge on racial or ethnic grounds”

and that judicial intervention in such situations was, therefore, warranted.172

The approach by the ONCA in R v Gayle demonstrates the potential application of a

Batson-style challenge in the Canadian context, and the importance of remembering that the role

of the Crown is not to seek conviction, but “to see that justice is done through a fair trial on the

merits.”173 Such fairness undeniably includes the right to a trial free from racial discrimination.

The future of peremptory challenges in Canadian criminal law is unclear. For now, law

societies should train lawyers on how to use peremptory challenges in a way that furthers

representation, where possible. This paper does not suggest that defence counsel should be

169 Gilad Edelman, “Why is it so easy for prosecutors to strike black jurors?”, The New Yorker (5 June 2015). 170 Hasan, supra note 164. 171 R v Gayle, 2001 CanLII 4447 (ONCA), 54 OR (3d) 36 at para 66. 172 Ibid. 173 Code of Conduct, supra note 61, ch 5.1-3[1].

33

disciplined for using peremptory challenges, per se. The duty of defence counsel is, above all, to

her client—although, such duties must be carried out in an ethical manner. However, through the

adoption of a Batson-style challenge in the Canadian context and through an expansion of the

principles articulated in R v Gayle, the process surrounding peremptory challenges may be used to

draw attention to the role of race and racism in the court room and ensure public faith in the

administration of justice through “checks and balances” on the Crown. In this way, the principles

of CRT function to make the ever-present role of race visible, knowable, and, thus, confrontable.

3.2 Challenges for Cause

Where it is impossible to assemble a representative jury (for example, due to problems with the

array, or simply based on populations in a given community), it is especially important that lawyers

are well-trained, willing, and able to exercise challenges for cause as a means of eliminating or

reducing the threat of racially-biased juries. Challenges for cause, as described above, are a kind

of counterstorytelling, in which counsel leads evidence of racial prejudice as a means of discerning

whether potential jurors are able to judge the case impartially, given that the accused or victim is

a person of colour (or, a judge may take judicial notice of such prejudice). Ruparelia explains that

challenges for cause “cannot remedy all that is wrong with a system mired in racism, but they do

have a crucial role to play.”174 When used appropriately and competently, challenges for cause can

be a key tool in a critical race litigation strategy to make race visible and, thus, address it directly.

Challenges for cause may enhance the fairness of a jury trial “by increasing the range of

perspectives among its members and by eliminating strong prejudices which will prevent rational

deliberation.”175 The procedure of challenging for cause is complex, as Petersen describes:

174 Ruparelia, “Who are you calling racist?”, supra note 152. 175 Kent Roach, “Challenges for Cause and Racial Discrimination” (1995) 37 CLQ 410.

34

When a challenge for cause is asserted, the opposing party may admit it, in which

case the juror will not be sworn. The opposing party may alternatively submit that

the ground for the challenge is not recognized in law, in which case the judge will

rule on the propriety of the challenge. Finally, the opposing party may contest the

challenge, in which case the issue will be tried by the two jurors who were last

sworn. Given the stringency of the challenge procedure, it would be very difficult

to effect a race-motivated exclusion under the pretext of one of the permitted

grounds.176

Thus, Petersen asserts, challenges for cause “are not readily susceptible to abuse” in the way

peremptory challenges are, because there are a series of procedural safeguards in place to ensure

the appropriateness of the challenge.177

Together, Parks and Williams recognized the right of people of colour to challenge

potential jurors for cause, on the basis of racial discrimination or biases. However, the manner in

which those challenges have been made in subsequent cases has been limited. Rakhi Ruparelia

explains: “The questions we use to screen prospective jurors for racial partiality in trials involving

racialized accused are equally blunt, unsophisticated, and unhelpful.”178 Ruparelia argues that the

“Parks inquiry” has failed to remain in-step with modern manifestations of prejudice, which are

less overt in an era where racism is socially stigmatized.179 Post-Parks and Williams, courts have

been hesitant to allow race-based challenges for cause.180 Ruparelia explains that in Ontario,

following the Parks decision, “[m]any trial judges were quick to distinguish Parks on the basis

that widespread prejudice against Blacks did not exist in their communities.”181 Moreover, in some

cases, Ruparelia describes, “trial judges reluctantly allowed a challenge for cause on racial

176 Petersen supra note 2 at 175. 177 Ibid. 178 Ruparelia, “Who are you calling racist?”, supra note 152. 179 Ibid. 180 Ruparelia, “Erring on the Side of Ignorance” supra note 147 at 274. 181 Ibid.

35

partiality to proceed, but took pains to explain that they were not conceding racism was prevalent

in their community.”182

Critical race theorists emphasize that the denial of racism in everyday society is a key

means by which such racism is perpetuated. Aylward explains:

It has been said that the image Canadians wish to portray to the world is one of

racial and cultural tolerance, of Canada as a mecca for the oppressed of the world.

If racism is a problem at all in Canada, these image-makers insist, it is an

‘aberration,’ merely the action of a few misguided individuals that should not

reflect on Canadian society as a whole.183

The insistent denial of the role of racism was a constant theme during the Stanley trial. For

example, Gerald Stanley’s lawyer, Scott Spencer, told CBC News: “I have seen no evidence that

race played any part in the tragic circumstances that escalated on the Stanley Farm on August 9,

2016. And I’m confident that will be borne out at trial.”184 Such denial of the role of racism in

Colten Boushie’s death and the subsequent trial are further erasures of the lived experiences of

Indigenous peoples in the Canadian justice system and must be addressed directly. Ruparelia

explains that the “choice not to grapple with the complexities of racism is a manifestation of white

privilege; wilful ignorance about racial prejudice is not an option that is available to everyone.”185

The subversion of “colour-blindness” is the main project of CRT, and it is a project that law

societies must take up, in order to ensure that white juries like the one that acquitted Gerald Stanley

are challenged to confront the race-based “elephant in the room.”

A main counterargument levelled at proposals to expand the use of race-based challenges

for cause is that such challenges and the process required to bring them create undue delay in trials.

182 Ibid at 276. 183 Aylward, supra note 7 at 40. 184 “‘I’ve seen no evidence that race played any part’: Gerald Stanley’s lawyer comments on the Colten Boushie

case”, CBC Radio (26 March 2017). 185 Ruparelia, “Erring on the Side of Ignorance”, supra note 147 at 271.

36

While concerns regarding trial delays are particularly relevant post-Jordan,186 it must be

remembered that the “Canadian way of selecting jurors may be efficient, but it is not fair.”187

Moreover, if lawyers push to expand the Parks inquiry, delays experienced at the “front-end” of

those trials will be mitigated by courts’ ability to take judicial notice of the factors giving rise to

the questions, as anticipated and directed by Justice McLachlin in Williams.188

Guided by law societies, both Crown and defence counsel must seek to expand the

application of the Parks inquiry. Challenges for cause enhance the appearance of fairness in trial

processes and serve to eliminate at least some potential jurors who may harbor discriminatory

biases toward an Indigenous or black victim or accused.189 Above all, challenges for cause

“sensitize” those in the courtroom, including the ultimate jury panel, of “the need to confront

potential racial bias and ensure that it does not impact on their verdict.”190 Henry and Henry note

that “Even if a potential juror is aware of having anti-black sentiments, there are social pressures

not to admit to oneself or others that one is prejudiced.”191 However, they argue, even if potential

jurors do not reveal their racial biases when challenged:

[B]y raising the issue of race prejudice and the need for racial impartiality before

the case is presented, jurors will be made aware of the need for their unprejudiced

participation. As well, questions regarding intolerance acknowledge that biases

exist, impact in the courtroom and are not tolerated by the courts [emphasis

added].192

Thus, challenges for cause hold a significant potential to enhance trial fairness for Indigenous and

black defendants and victims by addressing juror impartiality and must, therefore, be carried out

competently. Henry and Henry explain: “questions must be carefully designed, methods of

186 R v Jordan, 2016 SCC 27, [2016] 1 SCR 631. 187 Roach, “Our jury selection procedure is not fair” supra note 1. 188 Williams, supra note 63 at para 54. 189 R v Rogers, 2000 CanLII 22829 (ONSC), 38 CR (5th) 331 at para 8. 190 Ibid. 191 Henry & Henry, supra note 71. 192 Ibid.

37

assessment must be controlled and expert evidence should be used.”193 Therefore, law societies

must provide lawyers with education and guidance on when and how to challenge for cause on

racial grounds when representing or prosecuting an Indigenous accused, when the victim of the

alleged crime is Indigenous, or where the alleged crime is interracial in nature.194 An appropriate

challenge for cause in the Stanley trial may have looked something like the following challenge,

exercised by the Ontario Crown in R v Rogers:

Would your ability to judge the evidence in this case without bias, prejudice or

partiality be affected by the fact that the deceased victim [is] an Aboriginal person

and the person charged with the crime is a white person?195

In deciding to allow the above challenge for cause, MacKinnon J explained: “Racism will be at

work on the jury panel as soon as the victim is described as an Aboriginal.”196 In considering this

inevitability, it is key to remember that the jury selection process is driven in large part by the

discretion of lawyers, who elect to challenge where they deem appropriate. It is, therefore, essential

that lawyers receive training and guidance on the importance of using challenges for cause as a

means of making race in the courtroom visible. Ruparelia explains:

Judges are not the only ones who bear responsibility for advancing change in this

context. Defence lawyers must reject convenient but empty gestures to address

racial inequality and vigilantly defend thoughtful, informed, and comprehensive

requests to challenge for cause and appeal unreasonable denials. Prosecutors, too,

have an ethical responsibility to expose juror racism by not habitually opposing

challenge for cause requests and even initiating their own.197

For defence counsel to make such comprehensive requests to challenge and for prosecutors to fully

understand their ethical duties, law societies can and should adopt an explicit critical race litigation

strategy, premised on the importance of identifying the ways in which racism frames legal

193 Ibid. 194 R v Spence, 2004 CanLII 34919 (ONCA), 73 OR (3d) 81. 195 Rogers, supra note 189 at para 1. 196 Ibid at para 6. 197 Ruparelia, “Who are you calling racist?”, supra note 152.

38

processes and addressing it head-on. While challenges for cause do not directly address the

problem of unrepresentative juries, they have the potential to work toward the heart of the public’s

concern with representation: eliminating racial biases on juries and, thus, enhancing public faith

in the administration of justice.

CONCLUSION

In the wake of the Stanley trial, law societies must proactively educate and regulate lawyers with

respect to jury selection, as a means restoring public faith in the administration of justice.

Counterstorytelling has been used as a tool of CRT with success in Canadian jurisprudence to

contextualize the lived experiences of defendants and victims, break down stereotypes, and bring

the role of race in the courtroom into plain view. Law societies can and should address the crisis

of unrepresentative juries by adopting the CRT strategy of counterstorytelling, as a means of

expanding the Parks inquiry and, thereby, eliminating the possibility of unchecked racial prejudice

on juries and in courtrooms. By educating lawyers on systemic racism and barriers affecting

Indigenous and racialized peoples in Canada and guiding lawyers on how to ethically and correctly

exercise peremptory challenges and challenges for cause, law societies have a clear and important

role to play in ensuring that the Canadian justice system extends to Indigenous peoples in Canada,

too.

39

BIBLIOGRAPHY

LEGISLATION

Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts

and to make consequential amendments to Other Acts, 1st Sess, 42nd Parl, 2018, (first reading

29 March 2018).

Criminal Code, RS C 1985, c C-46, s 629(1).

Criminal Code, RS C 1985, c C-46, s 634(1).

Criminal Code, RS C 1985, c C-46, s 638(1).

Criminal Code, RS C 1985, c C-46, s 718.2(e).

Legal Profession Act, SNS 2004, c 28.

FOREIGN LEGISLATION

Criminal Justice Act 1988 (UK), c 33, s 118.

JURISPRUDENCE

R v Biddle, [1995] 1 SCR 761, 22 OR (3d) 128.

R v Fraser, 2011 NSCA 70, 273 CCC (3d) 276.

R v Gayle, 2001 CanLII 4447 (ONCA), 54 OR (3d) 36.

R v GDB, [2000] 1 SCR 520, 2000 SCC 22 (CanLII).

R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC).

R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433.

R v Jordan, 2016 SCC 27, [2016] 1 SCR 631.

R v Kokopenace, 2015 SCC 28, [2018] 2 SCR 398.

R v Parks, 15 OR (3d) 324, 24 CR (4th) 81.

R v Rogers, 2000 CanLII 22829 (ONSC), 38 CR (5th) 331.

40

R v S (RD), [1997] 3 SCR 484, 1997 CanLII 324 (SCC).

R v Sherratt, [1991] 1 SCR 509, 1991 CanLII 86 (SCC).

R v Spence, 2005 SCC 71, [2005] 3 SCR 458.

R v Williams, 1998 CanLII 782 (SCC), [1998] 1 SCR 1128.

INTERNATIONAL JURISPRUDENCE

Batson v Kentucky, 476 US 79 (1986) (USSC).

Regents of Univ. of California v Bakke, 438 US 265 (1978) (USSC).

GOVERNMENT REPORTS

Manitoba, The Aboriginal Justice Implementation Commission, Report of the Aboriginal Justice

Inquiry of Manitoba (1991) vol 1.

Nova Scotia, Royal Commission on the Donald Marshall, Jr, Prosecution: Digest of Findings

and Recommendations (Nova Scotia: 1989).

Ontario, First Nations Representation on Ontario Juries: Report of the Independent Review

Conducted by the Honourable Frank Iacobucci (Toronto: Ministry of the Attorney General,

2013).

SECONDARY MATERIAL: MONOGRAPHS

Carol A Aylward, Canadian Critical Race Theory: Racism and the Law (Halifax: Fernwood

Publishing 1999).

Dorothy A Brown, Critical Race Theory: Cases, Materials and Problems (St Paul:

Thomson/West 2007).

Steve Coughlan, Criminal Procedure, 3rd ed (Toronto: Irwin Law 2016).

Richard Delgado and Jean Stefancic, Critical Race Theory: an Introduction (New York: New

York University Press 2001).

Carmela Murdocca, To Right Historical Wrongs: Race, Gender, and Sentencing in Canada

(Vancouver: UBC Press 2013).

41

SECONDARY MATERIAL: ARTICLES

Misha Boutilier, “Optional By-Products or Constitutionally-Protected Purposes? Societal

Interests in Representativeness, the s.11(f) Right to Trial by Jury, and the Kokopenace Decision”

(2018) 65 Crim LQ 458.

R Blake Brown, “Challenges for Cause, Stand-Asides, and Peremptory Challenges in the

Nineteenth Century” (2000) 38:3 Osgoode Hall LJ 453.

Rosemary Cairns Way, “An Opportunity for Equality: Kokopenace and Nur at the Supreme

Court of Canada” (2014) 61 Crim LQ 465.

Arthur J Cockfield, “Limiting Lawyer Liberty: How the Statement of Principles Coerces

Speech” (2018) Queen’s Law Research Paper Series.

Richard Devlin and David Layton, “Culturally Incompetent Counsel and the Trial Level Judge:

A Legal and Ethical Analysis” (2014) 60 Crim LQ 361.

Miriam Henry and Frances Henry, “A Challenge to Discriminatory Justice: the Parks Decision in

Perspective” (1996) 38 Crim LQ 333.

Cynthia Petersen, “Institutionalized Racism: the Need for Reform of the Criminal Jury Selection

Process” (1993) 38 McGill LJ 147.

Kent Roach, “Challenges for Cause and Racial Discrimination” (1995) 37 CLQ 410.

Kent Roach, “The Urgent Need to Reform Jury Selection after the Gerald Stanley and Colten

Boushie Case” (2018) 65 Crim LQ 271.

Rakhi Ruparelia, “Erring on the Side of Ignorance: Challenges for Cause Twenty Years after

Parks” (2013) 92 Can Bar Rev 267.

Kelsey L Sitar, “Gladue as a Sword: Incorporating Critical Race Perspectives into the Canadian

Criminal Trial” (2016) 20 Can Crim L Rev 247.

SECONDARY MATERIAL: NEWSPAPER ARTICLES

“The Colten Boushie case: Canadians divided on jury’s verdict, but think Trudeau was wrong to

weigh in”, Angus Reid Institute (26 February 2018).

“‘I’ve seen no evidence that race played any part’: Gerald Stanley’s lawyer comments on the

Colten Boushie case”, CBC Radio (26 March 2017).

42

“Colten Boushie and beyond: A primer on the aftermath of Gerald Stanley’s acquittal”, The

Globe and Mail (13 February 2018).

Ian Austen, “A Murder Trial Stirs Emotions About Canada’s Relations With Indigenous

Population”, The New York Times (9 February 2018).

Lee Berthiaume, “Trudeau’s Comments on Gerald Stanley Acquittal Are Inappropriate,

Conservative MPs Say”, Huffington Post (11 February 2018).

Christie Blatchford, “It’s 1984 all over again for Ontario lawyers arguing against compelled

speech”, National Post (8 November 2017).

Keith Thor Carlson, “Social media full of vitriolic myths in the aftermath of the Stanley trial”,

The Conversation (22 February 2018).

Leyland Cecco, “Canada: Indigenous groups urge reform after shock of white farmer’s

acquittal”, The Guardian (12 February 2018).

Sunny Dhillon, “Court case highlights concerns about Indigenous representation on juries”, The

Globe and Mail (27 February 2018).

Andray Domise, “What the tragedy of Colten Boushie says about racism in Canada”, Maclean’s

(26 August 2016).

Ross Earnshaw, “Promoting Better Practices—a Proactive Approach to Lawyer and Paralegal

Regulation”, Slaw (12 February 2016).

Kyle Edwards, “Saskatchewan officials skipped a step when they formed Gerald Stanley’s jury”,

Maclean’s (31 March 2018).

Kyle Edwards, “The Gerald Stanley verdict is a blow to reconciliation—and a terrifying one at

that”, Maclean’s (10 February 2018).

Gilad Edelman, “Why is it so easy for prosecutors to strike black jurors?”, The New Yorker (5

June 2015).

Jacques Gallant, “Lawyers challenging part of Law Society of Upper Canada plan to address

racism”, The Toronto Star (23 October 2017).

Fernando Garcia, “Statement of Principles critics: Stop fighting against us”, Canadian Lawyer

Magazine (18 December 2017).

John Geddes, “Did Trudeau cross a line commenting on the Stanley verdict?”, Maclean’s (27

February 2018).

43

Gabrielle Giroday, “Online campaign questions LSO statement of principles”, Canadian Lawyer

Magazine (12 February 2018).

Emma Halpern, “Community engagement and commitment to social justice: A keynote

addresses by the Society’s Equity & Access Officer”, The Society Record (2015).

Nader R Hasan, “Eliminating peremptory challenges make trials less fair”, The Star (10 April

2018).

Andrea Hill, “Colten Boushie shooting: A timeline”, Saskatoon StarPhoenix (8 August 2017).

Sarah E Leamon, “Bill C-75 Fails to Deliver Necessary Changes to the Justice System”, The

Huffington Post (17 April 2018).

Aidan Macnab, “Stanley acquittal should not lead to scrapping peremptory challenges, say

criminal lawyers”, Canadian Lawyer Magazine (14 February 2018).

Naiomi Metallic, “I am a Mi’kmaq lawyer, and I despair over Colten Boushie”, The

Conversation (18 March 2018).

David Milward, “What could reform look like, after the fury over the Stanley acquittal?”,

Maclean’s (14 February 2018).

Shree Paradkar, “Post Colten Boushie verdict, is Twitter taking sides?”, The Star (21 February

2018).

Tony Pass, “A modest proposal concerning bias in the jury system”, The Lawyer’s Daily (23

March 2018).

Jill Perry, “Call to Action #27: The cultural competence imperative”, The Society Record (2015).

Rakhi Ruparelia, “Who are you calling racist? Challenging jurors for cause 20 years after

Parks”, CBA National Magazine (14 July 2015).

Kent Roach, “Colten Boushie’s family should be upset: Our jury selection procedure is not fair”,

The Globe and Mail (31 January 2018).

Alex Robinson, “Professor challenges statement of principles in court”, Canadian Lawyer

Magazine (7 November 2017).

David M Tanovich, “How racial bias likely impacted the Stanley verdict”, The Conversation (5

April 2018).

David Tanovich, “Boushie’s family—and our justice system—deserves answers. So why no

appeal?”, The Globe and Mail (8 March 2018).

44

John Paul Tasker, “Lawyers say post-Boushie justice reforms could actually make juries less

diverse”, CBC News (30 March 2018).

Alice Woolley, “An Ethical Jury? Reflections on the Acquittal of Gerald Stanley for the

Murder/Manslaughter of Colten Boushie”, Slaw (20 February 2018).

OTHER

Law Society of Ontario, “Statement of Principles – Templates”, online:

https://www.lsuc.on.ca/with.aspx?id=2147504074.

Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: NSBS, 2011, ch 5.1.

NSBS, “Nova Scotia Barristers’ Society Vision & Values” (17 June 2016).

NSBS, “Equity & Access: Resources for lawyers and law students”, online:

http://nsbs.org/resources-lawyers-and-law-students.

NSBS, “NSBS Regulatory Objectives,” online: http://nsbs.org/nsbs-regulatory-objectives.

NSBS, “Legal Services Regulation”, online: http://nsbs.org/legal-services-regulation.